Restaurant Liable for Employees'Harassment of Co-worker Because of Disability

Acts of sexual harassment include but are not limited to, same-sex harassment; female harassment of a male employee; and sexual harassment not motivated by any sort of misplaced sexual longing or desire. Sexual harassment can also result from a general hostility toward one sex or the other. Thus, chauvinistic taunts often amount to actionable sexual harassment for which an employer could be liable. Harassment also can be based on other protected categories.

The Equal Employment Opportunity Commission (EEOC) recently brought a case against a restaurant based on workplace harassment on behalf of a former employee who has Down's Syndrome. The employee was repeatedly called "stupid" at work, and was subjected to physical assaults from his coworkers, including placing a knife blade against his stomach, putting ice down his clothes, and throwing water in his face. As a result of this harassment, the individual resigned.

The EEOC determined that the former employee was disabled under the Americans with Disabilities Act because he was limited in his ability to learn, communicate, and take care of himself. Therefore, the EEOC claimed that since the individual has a disability, which is a lawfully protected category, and the harassment he suffered was on the basis of his condition, this workplace behavior was unlawful. The restaurant agreed to pay $90,000 to the individual because of the discriminatory treatment by his co-workers.

This case should be a valuable lesson to foodservice employers. Employers should remain vigilant to ensure they have taken reasonable steps to identify and prevent acts of harassment and discrimination of all kinds on any basis, including disability or other physical or mental conditions of their employees.

Employers should establish, distribute, post, and enforce effective anti-harassment and equal employment opportunity policies. These policies should clearly state that harassment on the basis of any protected category is unlawful, and will not be tolerated in the workplace. The policy should include a provision that notifies employees that violators of the policies will be subject to disciplinary action, including termination of employment.

The anti-harassment policy should make clear to employees that nobody has the right to harass them, including supervisors, executives, vendors, or customers. If employees believe they have been harassed, or if they have witnessed harassment, the policy should list a number of different individuals to whom they can report the harassment. Consider including, at a minimum, supervisors, individuals in your Human Resources department, or other managers.

The policy should not state that the harassment should be reported only to the employee's immediate supervisor, because often the immediate supervisor is the one accused of engaging in the harassing behavior. Lastly, it is critical that all anti-harassment policies assure employees they will not be retaliated against for reporting harassment.

Additionally, all managers should be trained on how to spot harassing behavior or discriminatory conduct in the workplace, both verbal and non-verbal acts, and how to stop it in its tracks. Managers should also learn how to handle a complaint from an employee, including contacting the person responsible for investigating the harassment and discrimination complaints as soon as possible.

An effective anti-harassment can pay off immensely for employers in the foodservice industry. When determining whether an employer is liable for alleged harassment, a key inquiry is whether the employer took reasonable steps to prevent the harassment. Often, the quality of an employer's anti-harassment policy is the determinative factor in whether an employer took such reasonable steps, which can make the difference between liability and no liability.

Foodservice employers should also be familiar with any applicable state statutes or municipal codes that list additional protected categories. For employers in those states or cities, harassment on the basis of such additional protected categories should be handled in the same manner as harassment based on sex or disability.

Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or ana@krupinobrien.com.
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